Governments to focus on new gTLDs during ICANN’s new eight-day Toronto meeting

ICANN may have received a bit of flak for cancelling Fridays earlier this year, but as it turns out ICANN meetings are getting longer, not shorter.
The recently published schedule for next month’s Toronto meeting covers eight days, from Friday October 12 to Friday October 19.
The official start of the event will as always be on the Monday (with the work really starting on the Saturday) and the official end will be on Thursday for the second time in a row.
But this time there’s also going to be some special-interest sessions on both Fridays too.
In a change to the usual order of things, the Governmental Advisory Committee has scrapped some of its meetings with other ICANN advisory committees and supporting organizations.
Instead, word is that the GAC plans to focus almost entirely on developing its new gTLD Early Warnings — preliminary warnings about objectionable applications — during the Toronto meeting.
It’s replacing its smaller inter-committee sessions with a one-off High-Level Meeting with SO and AC heads, which we understand is designed to bring newly participating governments up to speed on how ICANN works.
Should we expect to see a bigger GAC in Toronto, now that governments have the opportunity to start complaining about specific applications? It certainly seems possible.

“Whistleblower” accuses Nominet of trying to dodge freedom of information law

Nominet, the .uk registry, tried to evade the Freedom Of Information Act by using private email addresses to communicate with the British government, according to emails leaked by a disgruntled former executive.
Copies of the emails provided to DI by former policy director Emily Taylor appear to show that Nominet and the Department for Business, Enterprise and Regulatory Reform worked secretly in 2008 to invite government regulatory oversight of the .uk namespace.
Back then, Nominet’s elected board of directors was seen as being in danger of being taken over by domainers who were hostile to Nominet’s management and the rest of its board.
The company was ultimately restructured following an independent review, and Parliament passed legislation that enables the government to take over .uk if it appears to be in danger of capture.
The party line to date has been that the review was commissioned in October 2008, only after BERR wrote to Nominet to express concerns about its governance problems.
That position is looking increasingly open to question, however.
As I reported for The Register last month, an employment tribunal seemed to agree with Taylor that Nominet had approached BERR to discuss this so-called “Plan G” first.
The latest leaked emails, assuming they’re genuine, also make the Nominet position appear less believable.
This is the text of an email apparently sent from the personal email account of BERR civil servant Geoff Smith to the personal email account of Nominet senior policy adviser Martin Boyle:

Martin
Thanks. It was helpful to talk earlier. I have had a look at your mark up and the additional point by Emily. All good stuff but – as I said – I think the heart of our letter has to be a set of reasonable and intelligent questions that a senior civil servant, not familiar with the inner workings of the company, might ask. As I said earlier, if it needs translation from the Mandarin, then it has failed. Equally, if it reads like a Nominet management position paper on BERR letterhead then it has also failed. I will look seriously at your amendments and try and produce a version for David’s signature over the next two days.
It feels wonderful to work free from fear of FOI !!
Geoff

The email is dated October 8, 2008, a week before the BERR letter (pdf) that kicked off the independent governance review.
The “fear of FOI” is of course a reference to the Freedom Of Information Act, which enables British citizens to request government documentation including emails.
By using personal email accounts, Nominet and BERR would have been able to keep their negotiations out of reach of the FOIA.
The emails, again assuming they’re genuine, also show that Mark Carvell, senior advisor at BERR and longstanding UK representative on ICANN’s Governmental Advisory Committee, was using his personal email account to communicate with Nominet executives during the same period.
In one email, Boyle encourages Carvell and Smith to delete emails in anticipation of a FOI request.

Sent: Fri, 31 October, 2008 18:55:18
Subject: FW: [nom-steer] Save Nom-steer!
Geoff, Mark
This e-mail (below) – posted on nom-steer – makes me think that a FoI is just around the corner!
Most obvious would be the e-mail from me asking when we might expect the letter, but Pauline used this as the mail to reply to with the signed letter from David.
You might wish to trawl over your mails – in and out – to do a bit of pruning and suggest to Pauline that a couple might need to be deleted, too.
I’ve spoken to Tom and he is aware, too.
Martin Boyle

Attached is a forwarded email from domainer Andrew Bennett, then a member of Nominet’s Policy Advisory Board, which appears to show Bennett researching relationships between the company and BERR.
There’s no evidence that Smith or Carvell did delete any emails.
BERR has changed names a couple of times under successive governments, and is now the Department of Business, Innovation and Skills. Carvell is now at the Department for Culture, Media and Sport.
Taylor has provided her documents to Nominet’s local MP, Andrew Smith, who has referred the matter to the Head of the Home Civil Service and the chair of the Culture, Media and Sport Select Committee.
Trying to avoid FOI is frowned upon.
Last year, the Information Commissioner’s Office said that “information held in private email accounts can be subject to Freedom of Information law if it relates to official business”.
In addition to the FOIA claims, Taylor alleges that there is “an inappropriately close relationship between government officials in DCMS, BIS, and possibly Ofcom, and Nominet.”
Nominet told DI today that it is looking into the matter but declined to comment further.
Last month, when Taylor’s employment tribunal documents became public, the company issued a statement in which it denied instigating the government’s request for an independent review, saying:

This is not the case. Two major organisations (an ISP and a major British trade body) had already been in contact with BERR prior to any discussions between Nominet and the Government. Again, Nominet took actions focussed on supporting the ongoing trust in .uk and that we believed supported the goals of our membership as a whole. As you would expect of an organisation responsible for a piece of critical UK Internet infrastructure, we maintain a constant dialogue with the Government – but all conversations on this matter post-date the initial raising of concerns by stakeholders.

Taylor claims, however, that the ISP and the trade body (BT and the Confederation of British Industry) approached BERR at the behest of herself and other Nominet executives.
As previously reported, Taylor resigned from her position at Nominet in 2009, not long after returning to work following a period of stress-related sick leave.
An employment tribunal found last year that she had been constructively dismissed — that is, essentially forced out — by Nominet after she filed a grievance against her colleagues and they grew to distrust her. She’s currently an independent consultant.

The .patagonia problem

Argentina has escalated its complaint with ICANN about the new gTLD application for .patagonia.
Ambassador Alfredo Morelli of the country’s Ministry of Foreign Affairs has written to ICANN’s leadership to let them know that .patagonia “should not be used as a closed brand gTLD”.
An American clothing company that goes by the name of Patagonia Inc has applied for .patagonia, which it intends to use as a dot-brand, but Patagonia is also a region of South America.
Argentina’s Governmental Advisory Committee representative told ICANN’s board in Prague this June that the government would not stand for a geographic term for part of its country being used in this way.
But Argentina has a problem.
The new gTLD program rules, as spelled out in the Applicant Guidebook, give special protection to geographic strings, but only if they appear on certain lists.
Rather than create its own list of geographic strings, ICANN instead deferred to established international standards, such as ISO 3166.
Patagonia, as far as I can tell, does not appear on any of these lists. (The DI PRO database compares all applied-for strings against protected geographic names.)
While it’s undoubtedly the name of a region, covering parts of Argentina and Chile, it does not appear to be the name of the kind of administrative division covered by ISO 3166-2.
Judging by the Applicant Guidebook, ICANN’s Geographic Names Panel would therefore not designate .patagonia as geographic and the applicant would not have to secure government support for its bid.
It’s not clear from the Guidebook how much flexibility, if any, the panel will get to make subjective decisions with edge cases like this.
However, so much of the program that had been thought finalized is today apparently still open for negotiation that I wouldn’t be surprised if the rules are changed or reinterpreted.
While the .patagonia application has so far attracted almost 300 negative comments from internet users, it is not the only dot-brand to ruffle feathers in Argentina.
There has been a smaller outcry over the Commonwealth Bank of Australia’s application for .cba, which apparently matches the abbreviation of the Argentinian Province of Cordoba.
The string “CBA” does not appear to be protected by the Applicant Guidebook either, and I’ve not seen any official concerns raised by governments yet.
I think there’s a strong chance the .patagonia application is dead, even if it is not officially deemed geographic.
The GAC will almost certainly object, and even if the objection does not have consensus the ICANN board will have a big reason to reject the bid.

New gTLD hopefuls set aggressive targets for ICANN

ICANN should start delegating new gTLDs in the first quarter of next year as previously planned and the Governmental Advisory Committee should work faster.
That’s according to many new gTLD applicants dropping their ideas into ICANN’s apparently semi-official comment box on application “metering” over the last week or so.
ICANN wanted to know how it should queue up applications for eventual delegation, in the wake of the death of batching and digital archery.
According to information released over the past couple of weeks, it currently plans to release the results of Initial Evaluation on all 1,924 still-active applications around June or July next year, leading to the first new gTLDs going live in perhaps August.
But that’s not good enough for many applicants. Having successfully killed off batching, their goal now is to compress the single remaining batch into as short a span as possible.
The New TLD Applicant Group, a new observer group recognized by ICANN’s Registry Stakeholder Group, submitted lengthy comments.
NTAG wants Initial Evaluation on all applications done by January 2013, and for ICANN to publish the results as they trickle in rather than in one batch at the end.
The suggested deadline is based on ICANN’s recent statement that its evaluators’ processing powers could eventually ramp up to 300 applications per month. NTAG said in its comments:

Notwithstanding ICANN’s statements to the contrary, there is not a consensus within the group that initial evaluation results should be held back until all evaluations are complete; in fact, many applicants believe that initial evaluation results should be released as they become available.

That view is not universally supported. Brand-centric consultancy Fairwinds and a couple of its clients submitted comments expressing support for the publication of all Initial Evaluation results at once.
January 2013 is an extremely aggressive deadline.
Under the batching-based schedule laid out in the Applicant Guidebook, 1,924 applications would take more like 20 months, not seven, to pass through Initial Evaluation.
NTAG could not find consensus on methods for sequencing applications among its members. Separate submissions from big portfolio applicants including Donuts, Uniregistry, TLDH and Google and smaller, single-bid applicants gave some ideas, however.
Donuts, for example, hasn’t given up on a game-based solution to the sequencing problem – including, really, Rock Paper Scissors – though it seems to favor a system based on timestamping.
The company is among a few to suggest that applications could be prioritized using the least-significant digits of the timestamp they received when they were submitted to ICANN.
An application filed at 15:01:01 would therefore beat an application submitted at 14:02:02, for example.
This idea has been out there for a while, though little discussed. I have to wonder if any applicants timed their submissions accordingly, just in case.
Comments submitted by TLDH, Google and others offer a selection of methods for sequencing bids which includes timestamping as well alphabetical sorting based on the hash value of the applications.
This proposal also supports a “bucketing” approach that would give more or less equal weight to five different types of application – brand, geographic, portfolio, etc.
Uniregistry, uniquely I think, reckons it’s time to get back to random selection, which ICANN abandoned due to California lottery laws. The company said in its comments:

Random selection of applications for review should not present legal issues now, after the application window has closed. While the window was still open, random selection for batches would have given applicants an incentive to file multiple redundant applications, withdrawing all but the application that placed earliest in the random queue and creating a kind of lottery for early slots. Now that no one can file an additional application, that lottery problem is gone.

Given that the comment was drafted by a California lawyer, I can’t help but wonder whether Uniregistry might be onto something.
Many applicants are also asking the GAC to pull its socks up and work on its objections faster.
The GAC currently thinks it can file its official GAC Advice on New gTLDs in about April next year, which doesn’t fit nicely with the January 2013 evaluation deadline some are now demanding.
ICANN should urge the GAC to hold a special inter-sessional meeting to square away its objections some time between Toronto in October and Beijing in April, some commenters say.
ICANN received dozens of responses to its call for comments, and this post only touches on a few themes. A more comprehensive review will be posted on DI PRO tomorrow.

New gTLD applicants: here’s how to lobby the GAC

ICANN’s Governmental Advisory Committee has let it be known that it’s open to receiving communications from new gTLD applicants.
But the GAC will only hear briefings from applicants at the request of GAC members, according to a notice posted on the GAC’s web site recently.
The GAC has strong powers to recommend the rejection of new gTLD applications, so naturally enough some applicants have already been lobbying to reinforce their positions.
Applicants are now being asked to send information to a specific email address or — implicitly — to lobby GAC representatives individually.
The new statement reads:

It is important to bear in mind that GAC members are still in the process of analysing the list of applications and applicants for new gTLDs. However, there have been a number of requests from applicants or other interested stakeholders to brief or provide briefing material to the GAC.
Briefings for the GAC will only be scheduled on a best-efforts basis and entirely at the request of GAC members.
An internal process for handling requests and tracking materials is being put in place, but those wanting to make their interest or availability known or to express an interest in providing written materials to the GAC can contact the GAC via gacsec@gac.icann.org. A list of those expressing interest or availability or that have provided materials will be made available to the GAC membership.

The GAC caused controversy last month when it accepted the European Broadcasting Union’s application for Observer status on the committee.
The EBU is also an applicant for .radio, which is contested by Donuts, Afilias and BRS Media.
BRS Media claims this is a conflict of interest and recently started lobbying for the EBU to withdraw its application. This week, it set up a web site to promote its cause.

.radio applicant slams GAC “conflict of interest”

BRS Media, one of the four applicants for the .radio generic top-level domain, claims ICANN’s Governmental Advisory Committee has a “direct conflict of interest” over the gTLD.
As DI reported two weeks ago, the European Broadcasting Union, another .radio applicant (the others are Afilias and Donuts), joined the GAC during ICANN’s public meeting in Prague.
While the EBU only has Observer status, and may not vote, it’s still able to participate in discussions. Whether these include discussions about GAC objections to new gTLDs is unclear.
BRS Media, which already runs the radio-themed .fm and .am ccTLDs, is not taking any chances, however. In a letter to GAC chair Heather Dryden, company CEO George Bundy wrote (pdf):

We believe these activities to be a direct Conflict of Interest, by the European Broadcasting Union within the New TLD Application process.

Optimistically, to say the least, BRS requests that the EBU “recuse itself from the New TLD process by withdrawing its applications immediately”.
While I can’t see that happening, it seems to me that the GAC does have to formally address the conflicts issue if it wants to avoid looking like a bunch of hypocrites.
The GAC does not appear to have a formal conflicts of interest policy, even though it pushed hard for similar provisions in the ICANN board.
Now that it has its hard-fought veto rights over new gTLD applications, some sort of safeguards seem appropriate.

GAC demands appeal of IDN ccTLD bans

The Governmental Advisory Committee has slammed ICANN’s decisions to reject at least three non-Latin ccTLDs because they might pose security risks.
Remarkably, the GAC has also asked ICANN to “urgently reconsider” the rulings, which were made to mitigate the risk of phishing attacks and other types of domain name abuse.
In its official post-Prague communique, published over the weekend, the GAC tells ICANN that the way it decides whether to approve IDN ccTLDs has been “too conservative”.
While the letter does not single out any specific ccTLDs, I understand that the advice was formulated primarily at the behest of the European Union and Greece, which have both had IDN ccTLD applications rejected on the grounds of confusing similarity.
The Prague communique (pdf) states:

The GAC is of the view that decisions may have erred on the too-conservative side, in effect applying a more stringent test of confusability between Latin and non-Latin scripts than when undertaking a side by side comparison of Latin strings.

It goes on to ask ICANN to publish its criteria for evaluating the similarity of IDN ccTLDs, to create an appeals process, to publish its rationales for rejecting bids, and to revisit old decisions.
The communique states, as formal GAC Advice:

Recently refused IDNs, particularly those nominated by public or national authorities should be urgently re-considered in light of the above considerations.

This request instantly loses the GAC credibility points, in my view, casting it as little more than another special interest group focused on the goals of its members first and internet security second.
To be clear, the GAC is appealing ICANN decisions that were designed to prevent phishing.
Greece’s application for .ελ,was rejected by ICANN last year due to its visual similarity with .EA, a non-existent – but potential future – ccTLD.
While there’s not much on the public record about the European case, I understand Eurid’s bid for a Greek version of .eu was blocked because it looks too much like Estonia’s EE.
Bulgarian IDN supporters have also been very vocal the last couple of years in opposition to ICANN’s decision to forbid .бг due to its alleged resemblance to Brazil’s .br.
While decent arguments can and have been made that some of these rulings were a little on the silly side, it’s hard to argue that they were made without the best of intentions.
The GAC has promised to write to ICANN with “further reflections on the methodology that should be followed when evaluating two character IDNs”.
The GAC as a technical regulator? That letter should make for some interesting reading.

.radio gTLD applicant joins the GAC

The European Broadcasting Union, which is one of four applicants for the .radio top-level domain, has asked to join ICANN’s Governmental Advisory Committee as an observer.
It is believed that its request is likely to be accepted.
The move, which comes just a couple of weeks after ICANN revealed its list of new gTLD applications, could raise conflict of interest questions.
While several GAC governments and observers are backing new gTLD bids – the UK supports .london, for example – they’re generally geographic in nature and generally not contested.
But .radio has been applied for by Afilias, BRS Media and Donuts in addition to the EBU.
While any organization can file objections against applications, under the rules of the new gTLD program the GAC has the additional right to issue special “GAC Advice on New gTLDs”.
Consensus GAC advice is expected to be enough to kill an application.
Since it’s not entirely clear how the GAC will create its formal Advice, it’s not yet clear whether the EBU will have any input into the process.
According to the GAC’s governing principles, observers do not have voting rights, but they can “participate fully in the GAC and its Committees and Working Groups”.
The EBU’s .radio gTLD would be open to all potential registrants, but it would be subject to post-registration content restrictions: web sites would have to be radio-oriented, according to the application.
It’s also the only Community-designated bid in the contention set, meaning it could attempt a Community Priority Evaluation to resolve the dispute.
The EBU has also applied for .eurovision, the name of its annual singing competition, as an uncontested dot-brand.

ICANN: new gTLDs will not kill the internet

One of ICANN’s Governmental Advisory Committee’s ongoing inexplicable obsessions is that the introduction of new top-level domains risks toppling the internet.
One or more GAC members have raised the topic of DNS root zone scalability at pretty much every meeting the GAC has had with ICANN’s board of directors for the last couple of years.
It’s the reason why ICANN has committed to delegate no more than 1,000 new gTLDs – a fairly arbitrarily chosen number – to the root per year.
I’m not entirely sure where the GAC’s concerns originated, but they’ve been dismissed as red herrings on multiple occasions by ICANN and third-party technical experts.
And now ICANN has published yet another report – this one written by its own IANA staff – making the point that the risk to root stability is query volume, not database size.
Here’s the gist:

Having twice as many TLDs does not mean that the average Internet user visits twice as many web pages, or writes twice as many emails. Rather, Internet usage is driven by growth in overall Internet adoption. Having more TLDs available does not directly incur increased usage of the DNS; rather it will exchange a subset of their query load from existing TLDs to new TLDs.

You can download the full report here.

Delays likely as governments demand gTLD timetable rethink

If you think you’ll be able to launch your new generic top level domain in the first quarter of 2013, you can pretty much forget it.
The Governmental Advisory Committee told ICANN yesterday that it does not think it will be able to provide advice on new gTLD applications until April 2013 at the earliest.
It’s also told ICANN to seriously reconsider its controversial digital archery program and the whole gTLD application batching concept.
The current timetable calls for GAC Early Warnings – the “headsup” stage for applicants – to be submitted concurrently with the public comment period, which runs through August 12.
The more substantial GAC Advice on New gTLDs period is meant to track with the regular objection window, which is expected to close about seven months from now, in January 2013.
Now the GAC says it won’t be able to meet either of those deadlines.
In a letter to ICANN chairman Steve Crocker, GAC chair Heather Dryden gave applicants several excellent reasons to believe that the Applicant Guidebook’s timetable will not be met:

the GAC has identified several benefits from having a single Early Warning period in relation to all applications (these relate to efficiency, consistency, and timeliness). On this basis, the GAC advises the Board that it is planning to issue any Early Warnings shortly after the Toronto ICANN meeting, in October 2012.
…
Given the delays to the gTLD application process, the timing of upcoming ICANN meetings, and the amount of work involved, the GAC advises the Board that it will not be in a position to offer any advice on new gTLD applications in 2012. For this reason, the GAC is considering the implications of providing any GAC advice on gTLD applications. These considerations are not expected to be finalised before the Asia-Pacific meeting in April 2013.

The bold text was in the original, indicating that this is official GAC advice that should not be ignored.
Given the bigger picture, with the looming threat of the ITU’s big summit in December, ICANN is likely to be extra receptive to governmental advice.
Readers will notice that Dryden isn’t saying that the GAC will provide its objections before April 2013, merely that it won’t have finished thinking about the “implications” of such advice before April 2013.
What this means for the gTLD evaluation timeline is anyone’s guess. I expect more clarity will be requested during ICANN’s public meeting in Prague next week.
These two pieces of timing advice have the effect of focusing ICANN’s mind on the more immediate problem of application batching.
The GAC seems to be backing calls from registries and intellectual property interests to scrap the batching concept and the ramshackle “digital archery” system.
Dryden wrote (pdf):

the GAC is concerned that the potential risks associated with the digital archery and batching mechanisms may outweigh the benefits. In light of ICANN’s decision to initiate digital archery on 8 June 2012, the GAC advises the Board to consult with the community as a matter of urgency to consider ways to improve its assessment and delegation processes in order to minimise the downside risks and uncertainty for applicants.
In line with the concerns raised by the community, this should include a focus on competition and fairness with delegation timing.

Far be it from me to suggest that the GAC picked its revised advice deadlines strategically, but they do seem to fit quite nicely into a batchless Initial Evaluation period that lasts about a year, as some community members have recently proposed.
Those who were paying attention during the panel discussion portion of Reveal Day last week will have noticed me and a couple of audience members putting Cherine Chalaby, chair of ICANN’s board new gTLDs committtee, on the spot about batching.
Chalaby confirmed that the committee – which has the powers of the board when it comes to new gTLDs – wants to hear from the community about batching during the Prague meeting.
The trick, he indicated, is to be able to reconsider batching without simply relocating it to the pre-delegation phase of the program, which will probably be next year.
“We will listen to alternatives and we will think about it, there’s no doubt, you have to be open minded about it,” he said.
My sense is that if opponents of batching want to have a shot at getting it killed off, they’re going to have to present a strong case – with a fully considered alternative – during their face-to-face with the ICANN board of directors on Monday.
Moaning and whining isn’t going to cut it this time, ICANN is going to want to see dates, delegation models, the works.